Opinion
A142656
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO ANDRE MOUTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-120061-7)
Appellant Antonio Andre Mouton appeals from the trial court's judgment after a jury trial, in which he was found guilty of residential burglaries and sexual offenses involving two separate victims (Does I and II). The trial court sentenced Mouton to 32 years to life in state prison. On appeal, he argues the trial court prejudicially erred by denying his motion to sever the counts pertaining to Doe I from the counts relating to Doe II; that an impermissibly suggestive lineup violated his due process rights; that the prosecution violated its Brady obligation by a late disclosure of certain exculpatory evidence; that prosecutorial misconduct during closing argument violated his rights to due process and a fair trial; and that cumulative error requires reversal. We affirm the judgment.
Brady v. Maryland (1963) 373 U.S. 83, 84 (Brady).
I. BACKGROUND
A. Procedural History
By first amended information filed December 13, 2012, the Contra Costa County District Attorney charged Mouton with numerous offenses against three victims, to wit: 1) offenses against Doe I on June 30, 2010, first degree residential burglary (Count One) and assault with intent to commit rape (Count Two); 2) offenses against Doe II on July 6, 2010, first degree residential burglary (Count Three) and forcible rapes (Counts Four, Five, and Six); and 3) offenses against Doe III on August 10, 2010, first degree residential burglary (Count Seven) and assault with intent to commit rape (Count Eight). The first amended information further alleged that the residential burglaries constituted violent felonies, and attendant to the rape charges it was alleged that Mouton committed the rapes during the commission of a burglary and with the intent to commit a sexual offense.
On January 7, 2013, during jury selection, the trial court granted a mistrial after defense counsel had suffered a serious accident. The new trial with a different defense counsel began on March 18, 2014. During in limine proceedings, the trial court granted the prosecution's motion to dismiss the offenses against Doe III (Count Seven [first degree residential burglary] and Count Eight [assault with attempt to commit rape]).
On April 10, 2014, the jury returned guilty verdicts on Counts One [first degree residential burglary] and Two [assault with intent to commit rape] relating to Doe I, and Counts Three [first degree residential burglary] and Four [forcible rape] relating to Doe II, with true findings on the allegations, but declared a deadlock on Counts Five and Six [additional counts of forcible rape] pertaining to Doe II. B. Evidence at Trial
1. The Prosecution's Case
a. Offenses Against Doe I on June 30, 2010 (Counts One & Two)
In June 2010, 23-year old Doe I lived at the Park Regency apartment complex in Walnut Creek with her then-boyfriend Brandon T. On the night of June 30, Doe I went out for dinner and drinks with friends. She came home in a cab around 1:00 a.m. She went into the kitchen and turned on a light above the oven. She did not turn on any other lights because her boyfriend was asleep. Within 10 to 20 minutes or so, Doe I heard a knock on the front apartment door and she answered it. An African-American man in his late twenties was at the door. He told Doe I he had been locked out of an apartment and asked for some water. He said he lived in the complex and was waiting for his girlfriend. Doe I shut the door without locking it and went to the kitchen for water. She heard the door open and turned to see the man come in her apartment. Doe I immediately felt uneasy. The man stared at Doe I in a manner that "wasn't a friendly stare." He then approached her and put his hand over her mouth before she could scream and pushed her against the stove. Doe I was scared and had a lot of things going through her mind at this point. Doe I testified that the man told her "something along the lines if I were to be quiet, I wouldn't get hurt." Doe I continued: "I remember he said if I—that he wouldn't hurt me if I stayed still or if I didn't fight back." Doe I noticed that the man was wearing a baseball cap.
Doe I used her legs to jab at the man and after she escaped from him, she first crawled and then ran towards the bedroom where her boyfriend was sleeping, yelling, "Brandon." Doe I woke up Brandon T. and tried to explain to him as quickly as possible what had just happened. Brandon T. ran to the kitchen and out the front door of the apartment but saw nothing. Within a few minutes, they called the police.
Brandon T. testified that Doe I told him what had happened: "She—she said that, you know, she—there was a knock on the door. When she went to answer, someone, you know, there's a—there was a male there that said, 'Can I have a glass of water?' She shut the door. [¶] And then when she got—went to go get a glass of water, when she turned around, he was inside. And I don't know if she said she started screaming then or what happened next, but she—eventually he put his hand over her mouth. And I guess she kind of fought him off a little bit, and then that's when she screamed out my name. . . . [¶] . . . [¶] After he put his hand on her mouth, I don't remember she said what he did afterwards. I think again she started to fight him off a little bit, and then he had—you know, she screamed my name. And he ran out the door or he ran out the door before then, and she screamed my name." Doe I told Brandon T. that the man was African-American, in his twenties, and possibly six-feet tall.
Contra Costa County Sheriff's Deputy Ryan Maclennan was dispatched to Jane Doe I's apartment at 1:40 a.m. on June 30, 2010, and arrived about five minutes later. Doe I described her assailant for Deputy Maclennan as a Black man in his early twenties, with a thin goatee and approximately 5-feet 11-inches tall and 160 pounds. Doe I said the man was wearing a blue baseball cap, baggy blue jeans and a red, button-up shirt.
Deputy Maclennan smelled alcohol on Doe I's breath and she explained that she had been out that night drinking with some friends at bars in Walnut Creek. Deputy Maclennan saw no other objective signs of alcohol consumption by Doe I and her drinking did not appear to have compromised her ability to tell him what had happened.
Doe I told Deputy Maclennan that after she returned home that evening she heard a knock at the apartment front door and she looked through the door's peephole, observing an unfamiliar Black male standing at the door. She opened the door for the man and he asked her for a glass of water. She agreed and after she closed the door and walked to the kitchen and reached for a glass "she heard the door open, so she turned around and she saw the man in the kitchen." Doe I told Deputy Maclennan that the man approached her and put his hand over her mouth. "She said she kneed him in the crotch or lower stomach area" and "ran to the bedroom to get her boyfriend who was asleep."
Doe I told Deputy Maclennan that the man touched only her mouth, nowhere else, and that when he put his hand over her mouth he said only " 'It's okay' " and nothing else. Brandon T. told Deputy Ian Gibson that Doe I had told him the man said "be quiet" when he put his hand over her mouth.
b. Offenses Against Doe II on July 6, 2010 (Counts Three & Four)
On July 6, 2010, 23-year-old Jane Doe II lived in the Park Regency apartment complex in Walnut Creek with her husband, who had left for work that day between 8:30 a.m. and 10:00 a.m. Doe II's husband may or may not have locked the front apartment door when he left, but he definitely closed it.
Doe II was still asleep when she felt a kiss on the back of her neck. She awoke to see an African-American man on the side of her bed. She was not wearing "much," perhaps just underwear. Doe II may have screamed on seeing the man. He was mumbling and Doe II didn't hear him clearly, but he said something like " 'I'm gonna kill you' " or " 'I could kill you.' " Doe II was in shock as the man came towards her and got on top of her. Doe II did not see a weapon and tried without success to push the man away. The man appeared to be in his early twenties, and probably around six-feet tall, with a long face and big lips. His breath had a strange scent, like cigarette smoke or "something."
The man raped Doe II. Although she could not remember well the details of the incident, Doe II testified that the man might have inserted his penis a couple of times into her vagina, or three or four times. However, he was only on top of her once, and the two or three times might have been just thrusts. The entire assault lasted only seconds. As Doe II pushed the man away he said, " 'What's the matter. Don't you like [B]lack people?' " Doe II responded, " 'No, I don't like people who rape me.' "
After the man got up he asked Doe II if she had any money. She replied that her husband " 'took it with him to work.' " The man then asked if she was going to call the police. The hysterical Doe II kept telling man to go and he finally left the bedroom. Doe II did not see the man leave the apartment.
Distraught and afraid, Doe II took a shower and locked herself into the bathroom until her husband came home at around 6:00 or 7:00 p.m. Doe II's husband called the police after she told him she had been raped.
Contra Costa County Sheriff's Deputies Otis Singleton and Tricia Richardson arrived at Doe II's apartment very quickly thereafter, at around 7:20 p.m. Doe II described her assailant for Deputy Singleton as a medium- to dark-skinned African American male in his early twenties, over six-feet tall, with a long face, full lips, and a cigarette smoke taste on his breath. Doe II also told Deputy Singleton that the man had inserted his erect penis into her vagina three or four times.
After talking to the deputies, Doe II went to the Contra Costa Regional Medical Center, where she underwent a sexual-assault exam.
c. Police Investigation
During her sexual-assault exam Jane Doe II was "anxious" as well as "tearful, withdrawn, and jumpy." Doe II had injuries to her vaginal area (including a torn fossa navicular area and bruising on her cervix), which were consistent with her having suffered forcible sexual penetration. During the exam, Doe II's treating nurse collected vaginal swabs and smears from her (a "rape kit"), as well as a buccal swab for DNA-testing purposes.
Sergeant Jose Rivera of Contra Costa County Sheriff's Office testified that on July 7, 2010 he responded to the Park Regency apartments to begin an investigation into the crimes against Does I and II. Sergeant Rivera first spoke with Doe II and her husband in their apartment. Sergeant Rivera obtained buccal swabs for DNA analysis from Doe II and her husband.
At the time of the investigation, Sergeant Rivera was a detective working in the Special Victims Unit.
Sergeant Mary Bustamante of the Contra Costa County Sheriff's Office also interviewed Doe II on July 7, 2010. During this interview, Doe II told Sergeant Bustamante that her assailant had inserted his penis into her vagina three or four times. Doe II told Sergeant Bustamante that she was unsure of the exact words the assailant had used when speaking with her: It might have been, " 'I could kill you, I might kill you,' or something to that effect." Doe II told Sergeant Bustamante that the man had put his tongue in her mouth. Doe II also told Sergeant Bustamante that when she pushed the man away he said, " 'Don't you like [B]lack people?' " and she responded, " 'No, I don't like people who rape me.' "
Sergeant Rivera testified that he also met with Doe I on July 7, 2010. Doe I told him that she had a "faded memory" of her assailant. Later that same day, Rivera arranged for a volunteer sketch artist with limited experience, Marie Rankin, to meet separately with both Doe I and Doe II.
At the time of the investigation, Rankin had seven weeks of training.
Doe II told Rankin that her rapist was Black, in his twenties, with short hair and full lips. Doe II said the man was six-feet tall and dark skinned, with no facial hair. He had been wearing blue jeans. (3 RT 764.)
Doe I told Rankin that her perpetrator was Black (dark skin tone), about six-feet tall, and had worn a hat. He had been wearing jeans, was between 25 to 32 years old, and had long fingertips. Rankin testified that it was possible that officers had briefed her about the descriptions Does I and II had already given to law enforcement. Sergeant Rivera believed that the same man was responsible for both incidents, although he did not have a specific suspect at that point.
Sergeant Rivera released Rankin's composite sketches to the press, which resulted in a flood of calls from other police officers and citizens. This included a July 13, 2010 tip, reporting that Mouton "resembl[ed] the composite sketches." Based on this information, on July 13, Rivera created a photo spread or stack consisting of 13 photos, including photos of Mouton, his fraternal twin, who was described as being "far from identical,", and another brother, Blaise Hearst. Sergeant Rivera testified that the photos were not selected to match the descriptions given by Does I and II. Instead, he compiled the photo stack with pictures of the possible suspects named in the numerous tips, and without regard to physical characteristics (up to a certain extent) such as race, age, size, skin color or hair.
Sergeant Rivera showed Doe II the photo stack on July 13, 2010, at her apartment. Rivera testified that Doe II was scared when she selected the photo of Mouton and said something to the effect of "[i]t looks like" the man who raped her. Doe II testified that she chose two photographs, which she confidently believed was the same person.
On July 28, 2010, Sergeant Rivera learned that sperm had been found in Doe II's rape kit. On August 3, 2010, Rivera showed the 13-photo stack to Doe I at her apartment. Doe I, who was not entirely certain, selected photos of Mouton and his twin as possibly being her assailant. By that time, Rivera knew that Mouton's twin brother had been in prison since June 8, 2010, and thus could not have committed the crimes in this case.
On August 10, 2010, the police executed a search warrant at a residence believed to be associated with Mouton. During the search, officers seized a blue baseball cap from a bedroom closet, among other items.
After execution of the warrant, the police arrested Mouton and obtained a buccal swab from him. The sperm samples found in Doe II's rape kit matched Mouton's DNA profile as the major contributor and excluded Doe II's husband.
The police also obtained Mouton's cell phone on August 13, 2010. Michael Voss, a crime analyst with the Contra Costa County Sheriff's Department, testified as an expert in interpreting cell phone records. Voss received and reviewed phone records for the cell phone registered to Mouton. The records spanned the period from June 29, 2010, to August 6, 2010. On June 29, appellant's phone hit cell phone towers in Walnut Creek from 9:31 a.m. until 1:25 p.m. on June 30. All three towers connecting Mouton's phone were within the range of the Park Regency apartment complex, as well as the apartment where Mouton's mother and aunt lived, where Mouton sometime visited and stayed overnight. On July 6, 2010, Mouton's phone hit Walnut Creek towers at 7:19 a.m., 7:52 a.m., 8:11 a.m., 8:21 a.m., 8:22 a.m., 8:38 a.m., and 9:11 a.m., when the phone began showing movement towards Berkeley. On August 10, 2010, Mouton's phone hit towers in Berkeley.
2. The Defense's Case
a. Attack of Doe III on August 10, 2010
On August 10, 2010, at 8:30 a.m., Doe III was attacked in her Park Regency apartment. She awoke to an African-American man with his hand over her mouth. The man was approximately 25 years old, about six-foot one-inch tall, and approximately 200 pounds. The man told Doe III, " 'Don't scream. Don't make a sound. I have a gun.' " Doe III began kicking at the man, including at his groin. She escaped his grasp and sprayed a substantial amount of pepper spray on him.
Sergeant Rivera arrived at Doe III's apartment around 9:15 a.m., with the 13-photo stack, although he had switched out Mouton's photo for a more recent one. Doe III identified two photos as possibly depicting her assailant: Mouton's twin brother Antwan, and another man, William Raymond Webb, whom Rivera knew to be an area burglar. Rivera never followed up on Webb. Instead, Rivera charged Mouton with the Doe III offenses, even though Mouton's cell phone was hitting towers in Berkeley at the time of the offenses, and when Rivera met with Mouton later that same day, he showed no signs of having been sprayed with pepper spray.
b. Lapses in Police Investigation
Philip Noden, the manager of the Park Regency apartment complex, testified that the complex had 2,300 residents, with a yearly turnover of 400 apartments.
In the summer of 2010, he worked with Deputy Schwind regarding the assaults. Noden also met with Sergeant Rivera and showed him the video surveillance footage. The system over-recorded every seven days, and there was no download capacity on the system. Noden posted the composite sketches and disseminated copies to the residents. On August 12, 2010, he had copies of sketches when an "illegal resident" named Michael Petties came into his office. Noden testified Petties had such an "uncanny" resemblance to the sketches that he immediately telephoned Deputy Schwind who responded immediately and interviewed Petties.
c. Mouton's Testimony
Mouton was 22 years old in 2010. He had misdemeanor convictions for carrying a loaded firearm and negligently discharging a firearm in 2007. In the summer of 2010, Mouton had no permanent residence, but stayed with friends and relatives at places in Berkeley, Oakland, and Walnut Creek. Mouton went two or three times a week to the Walnut Creek apartment where his aunt, mother, little brother, and mother's boyfriend lived. He sometimes spent the night there. Mouton was familiar with the Park Regency apartments because he used it as a short cut from his aunt's apartment to a 7-Eleven store.
Mouton remembered staying at his aunt's apartment on the night of June 30, 2010. However, he had never seen Doe I before, and did not knock on her door, ask for water, or go inside her apartment and put his hand over her mouth. Mouton had a tattoo on his hand that he had had since 2006 or 2007. He was a daily marijuana smoker. On the morning of July 6, 2010, after having spent the night in Walnut Creek at his aunt's apartment, he smoked more than an ounce of marijuana (eight joints), which left him "stoned." When Mouton decided to go to the 7-Eleven store to buy more Swisher rolling papers, he hopped a fence into the Park Regency apartment complex. Once in the complex, he noticed a slightly-open apartment door. Because he was "curious" about what was inside the apartment and "high" and "not doing too much thinking" (in part because of the marijuana), Mouton "stupidly" went inside.
Inside Mouton saw a naked woman in a bedroom. Although Mouton had thoughts of leaving the apartment at this point he made "a stupid decision" to stay and approached the woman and touched her shoulder. Mouton testified both that he did not think that it was appropriate for him to have touched her and that he "wasn't thinking at the time." The woman woke up and looked shocked and scared; Mouton said nothing at all to her but started having sex with her. Mouton admitted that he took advantage of Doe II's fear. He entered Doe II only once and "thrust" his penis "maybe two times at most."
Mouton testified, "I looked at her and seen that, you know, what was going on was wrong and I decided to leave." The sex had lasted "a minute, if that," and he did not ejaculate. After first denying that he kissed her, Mouton admitted that he put his tongue in Doe II's mouth. Mouton testified that he could not remember if he asked Doe II for her wallet. Before he left the apartment Mouton asked Doe II if she was going to call the police. She responded by telling him to leave and he did so.
Mouton testified that by the time of trial, he knew what he had done was wrong, but at the time of the crimes he had been "curious," and both not thinking and thinking "somewhere that it might have been okay" with Doe II for him to have sex with her. Mouton also testified that at the time he penetrated Doe II he knew what he was doing and knew that what he was doing was a crime.
Mouton testified that he spent the morning of August 10, 2010, in Berkeley. He was not in Walnut Creek anytime that morning. He denied assaulting Doe III on August 10; he had not been in her apartment and had not been pepper sprayed. Later that same day he met with police and was arrested, showing no signs of having been pepper-sprayed earlier that day.
II. DISCUSSION
A. Severance
1. Background
Mouton was initially charged with the incident involving Doe III in Counts Seven and Eight of the First Amended Information, which alleged first degree residential burglary and assault with intent to rape Doe III on August 10, 2010. At the first trial, the defense moved to sever the June 30, 2010 incident involving Doe I (Counts One & Two) and the August 10, 2010 incident involving Doe III (Counts Seven & Eight) from the four counts in the July 6, 2010 incident involving Doe II (Counts Three, Four, Five & Six). The defense argued that in light of the dissimilarity of two incidents, evidence of the June 30 and August 10 charges would not be cross-admissible at a trial on the July 6 charges; that the July 6 charges of forcible rape would be highly inflammatory, and because the evidence of that rape was strong, whereas the evidence of the June and August charges was weak, a joint trial would result in a prejudicial spillover effect. The trial court denied the motion, reasoning that the jurors would be able to follow the instructions not to find Mouton guilty of the June Doe I counts on the basis of finding him guilty on the July Doe II counts.
When the severance issue was revisited in the second trial, the prosecutor agreed to sever the August 10 charges (Doe III) from the June and July charges (Does I and II), stating that the first two incidents took place within the same week, whereas the third was a month later. When the trial court agreed and ruled to sever the August Doe III charges, but ruled that the June Doe I and July Doe II charges should be tried jointly, defense counsel withdrew the motion to sever. Defense counsel argued the evidence as to the August Doe III incident was so weak, that the defense preferred the jury hear such evidence. When the trial court acceded to that request, the prosecutor moved to dismiss the August Doe III charges (Counts Seven & 8), and moved to exclude any mention of that incident.
The trial court dismissed Counts Seven and Eight without prejudice, and ruled that either side could present evidence of the August Doe III incident, subject to Evidence Code section 352. The defense renewed the motion to sever the June Doe I counts from the July Doe II counts. The trial court reiterated its earlier ruling denying the motion.
2. Analysis
Mouton contends the trial court denied him a fair trial by denying his motion to sever the trial on the counts in which Doe I was the victim from those in which Doe II was the victim.
Penal Code section 954 provides: "An accusatory pleading may charge two or more different offenses . . . of the same class of crimes or offenses, under separate counts . . . [T]he court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately. . . ." However, "consolidation or joinder of charged offenses 'is the course of action preferred by the law.' " (People v. Soper (2009) 45 Cal.4th 759, 772 (Soper).) "The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' " (Id. at p. 773.)
"The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial. " ' " ' "Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the ' "spillover effect" ' of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.' " ' " (People v. Vines (2011) 51 Cal.4th 830, 855.)
"[T]he first consideration in evaluating a motion to sever is 'cross-admissibility,' i.e., the extent to which evidence of charge A would have been admissible in a hypothetical separate trial of charge B, and vice versa." (People v. Earle (2009) 172 Cal.App.4th 372, 388 (Earle).) "If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges." (Soper, supra, 45 Cal.4th at pp. 774-775.)
Evidence of Mouton's forcible rape of Doe II would have been admissible in a separate assault with intent to rape trial under Evidence Code section 1108, which "allows evidence of the defendant's uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant's disposition to commit such crimes." (People v. Reliford (2003) 29 Cal.4th 1007, 1009.) Rape is among the enumerated sexual offenses (Evid. Code, § 1108, subd. (d)(1)(A)) that are specifically admissible in a sexual offense prosecution notwithstanding the general prohibitions of Evidence Code sections 1101 and 352 (Evid. Code, § 1108, subd. (a)). Evidence that Mouton had forcibly raped Doe II was clearly relevant to charges involving Doe I as it had "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Mouton complains that the evidence regarding the forcible rape of Doe II was unduly prejudicial because its probative value was marginal and the potential for prejudice was great. He further argues that the charges involving Doe II were " 'particularly more inflammatory[,]' " asserting that "[a] forcible rape of a woman asleep in her bed is exponentially more inflammatory than an 'assault' involving a man putting his hand over a woman's mouth and running off when she screams."
" 'Prejudice,' " however, as contemplated by Evidence Code section 352 "is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption ' "substantially outweigh" ' the probative value of relevant evidence, a section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) 'The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' (People v. Karis (1988) 46 Cal.3d 612, 638.)" (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008.)
Instead, "[t]he prejudice that [Evidence Code] section 352 ' "is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] 'Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' (People v. Zapien (1993) 4 Cal.4th 929, 958.) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy, supra, 53 Cal.App.4th at p. 1008.)
Mouton has not demonstrated that evidence of the Doe II rape charges was so inflammatory as to motivate the jurors to decide his case based solely on their emotional reaction to this evidence. Moreover, the trial court gave CALCRIM No. 1191 regarding evidence related to other crimes, advising the jurors that this evidence was "not sufficient by itself to prove the defendant is guilty of another charged offense." CALCRIM No. 1191 also admonished the jurors that "the People are required to prove a charged offense, including the specific intent required for that offense, beyond a reasonable doubt before you may convict the defendant of the charged offense." We presume the jurors followed this instruction. (People v. Delgado (1993) 5 Cal.4th 312, 331.) We thus conclude the court did not abuse its discretion denying the motion to sever, and Mouton suffered no loss of his due process rights. B. Photographic Line-up
Mouton contends that the trial court violated his due process rights when it admitted evidence of the photo lineup and Doe I's out-of-court identification. He argues that the photo lineup was unduly suggestive because it was prepared by using a highly "unorthodox" procedure, which compiled the array "without regard to the descriptions of the race, age and skin color of the suspects" provided by the witnesses, "but did include [Mouton], his fraternal twin[,] and another brother." Mouton claims that this procedure resulted in "an unreliable tentative identification" by Doe I, who could not identify him in court. These facts, Mouton claims, require that his convictions for the offenses against Doe I (Counts One and Two) be reversed.
We disagree. The photo lineup and the manner in which it was conducted satisfied the demands of due process. As we shall explain, the lineup was not unduly suggestive because Mouton's photo did not stand out.
1. Background
In a motion in limine, Mouton moved to exclude evidence from the photo lineup. He also argued that any in-court identification by the witnesses would be tainted by the unduly suggestive line-up procedure. He contended the photo lineup was unduly suggestive because 1) Sergeant Rivera essentially included three photos of Mouton by including one of Mouton himself (number 5) plus two photos of his brothers (number 3 and number 13), which gave the witnesses "three chances to pick" Mouton out of the photo lineup; and 2) the remaining photos differed "dramatically" from Mouton "in age (in some cases, nearly three decades older); race; complexion; height; weight; hairstyle; and facial hair."
Mouton claimed that the differing characteristics in the filler photographs, other than those depicting him and his brothers, were wide-ranging. For example, Mouton noted that photo number 1 showed a male nearly two decades older than him and not obviously African-American. Photo number 2 also showed someone who was not African-American and photo number 4 showed someone who was nearly 10 years older than Mouton. Mouton further noted that photo number 9 showed someone with long dreadlocks; photo number 10 showed someone who was 17 years older than him; photo number 11 showed someone nearly 30 years older than Mouton; and photo number 12 showed someone with a light complexion. Mouton argued that the evidence elicited at the hearing on his motion would show that the identifications made at the unduly suggestive procedure were not reliable and that the prosecution would not be able to establish that any in-court identifications would be free of taint from the unduly suggestive and unreliable photo lineup.
Sergeant Rivera testified at the in limine hearing that he compiled the photo lineup at issue, which consisted of 13 photos presented to the witnesses in a single stack. At the time, Rivera compiled the photos he had "no suspect" and thus chose the photographs based on the numerous tips he received about potential suspects. Because one tip had led him to believe Mouton was a suspect, he added Mouton's photo (number 5), and also that of Mouton's fraternal, twin brother, Antwan Mouton (number 13). Rivera did not know at the time that Antwan was Mouton's twin brother. Rivera testified that it was "a coincidence" that the photo stack included a picture of Mouton's other brother, Blaine Hearst (number 3).
Although Sergeant Rivera had been trained to compile a lineup by choosing photos that match the witnesses' description as to age, height and race, and even though his report stated that he had used photos of individuals matching "the suspect's" (i.e., Mouton's) "physical characteristics," Rivera did not use that technique in this case. Instead, Rivera "took a bunch of people that [he] had tips about and put them in a lineup whether or not they matched the suspect's description." Rivera explained, "In this case I had to kind of think outside the box."
Doe II viewed the photo lineup on July 13, 2010, after Sergeant Rivera admonished her that she was not obligated to choose a photograph and that his goal was both to "catch" the guilty party and "free those that didn't do it." Doe II selected photo number 5 (Mouton), as she cried and stated that the photo " 'looks like him.' "
Doe I viewed the photo lineup on August 3, 2010, approximately one month after the incident. After receiving a standard admonishment from Detective Rivera, Doe I selected photos of Mouton and his fraternal twin brother, numbers 5 and 13.
Doe III viewed the photo lineup on August 10, 2010, and she chose two photos, number 6, a picture of a local burglar, and number 13, Mouton's twin. Doe III said, generally regarding both photos, that " '[t]hat looks like it could be him.' "
The trial court denied appellant's motion to suppress the photo-identification evidence as follows: "THE COURT: All right. I do remember this lineup. I remember going through the photos and viewing them and remembering that photos number 1 and number 2 and number 6 did not match any description provided by any of the victims as well as photo number 9 because of the dreadlocks. But assume for a minute that you take those four photos out, you're still—or five of the photos, rather, what you have left are anywhere from eight to nine photographs. [¶] Now, given the fact that the standard of a conventional lineup is a six-pack, this is different from the norm. But I don't find anything about the remaining photos that are unduly suggestive as to Jane Does I, II, and, at the time, III, even though III did not choose anybody. [¶] I think that Jane Doe I, I believe it was, picked numbers 5 and 13, pulled them out of a stack, and put them side by side. I think she said, " 'It looks like it could be him.' " And then it might have been Jane Doe II who took some time going through 1 through 4 and then picked number 5. And I could have those two reversed, but, at any rate, there was one where there was almost instant recognition after seeing the first four, and then the other woman pulled 5 and 13 out. And of course 5 is Mr. Mouton, and 13 is his brother. [¶] So in looking at the photos, I don't find that any other photo that remains in is marked or in somehow, some way suggestive to the women who viewed it. They all seem to be fairly consistent. And obviously there are differences in terms of skin tone and hair and eye shape, but, other than that, I think that this is a fairly generic lineup to the extent that anything can be generic. [¶] So, for those reasons, the Court is going to deny the motion."
2. Analysis
" 'In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.' (People v. Cunningham [(2001)] 25 Cal.4th [926,] 989.) It is the defendant's burden to demonstrate the existence of an unreliable identification procedure. (Ibid.) 'We review deferentially the trial court's findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.' (People v. Gonzalez (2006) 38 Cal.4th 932, 943.)" (People v. Lucas (2014) 60 Cal.4th 153, 235, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) "A photographic identification procedure is not rendered unduly suggestive by its inclusion of two photographs of the accused." (People v. Holt (1972) 28 Cal.App.3d 343, 350, disapproved on another point in Evans v. Superior Court (1974) 11 Cal.3d 617, 625, fn. 6; accord People v. Dewberry (1974) 40 Cal.App.3d 175. 181.)
" '[T]he law does not require a perfect lineup, only that it be a lineup that is a fair one, and that it not be impermissibly suggestive . . . .' " (People v. Lucas, supra, 60 Cal.4th at p. 236.) "[W]e have recognized that ' "[b]ecause human beings do not look exactly alike, differences are inevitable" ' and the primary concern ' "is whether anything caused defendant to 'stand out' from the others in a way that would suggest the witness should select him." ' " (Id. at p. 237.) If "we find that the challenged procedure was not unduly suggestive, our inquiry into the due process claim ends." (People v. Virgil (2011) 51 Cal.4th 1210, 1256.)
When the photographs are examined in light of the foregoing principles, it is readily apparent that that the photographic lineup was not unduly suggestive. Contrary to Mouton's assertion, the photographs did not cause him to stand out. In the lineup assembled here, the recounting of the age, height, and weight of the fillers might indicate a marked disparity between the appearance of Mouton and the other 12 persons, but the photographs presented to the witnesses were only headshots in which all of the information was redacted. Sergeant Rivera and another officer prepared a list that set forth the name, age, height, and weight of each person in the array. This list was not presented to the witnesses at the time they viewed the photographs. The photographs demonstrate that Mouton does not appears to be significantly taller or thinner than the other participants. Further, while the oldest line-up member was, in fact, more than twenty years older than Mouton, the others were either slightly to moderately older than Mouton (three to ten years), with the photographs again reflecting no glaring age disparities. With the exception of one man who was nearly 100 pounds heavier than Mouton, there were no blatant discrepancies in terms of weight.
We have obtained and reviewed the lineup photos from the trial court.
That one of the fillers wore dreadlocks did not unfairly cause Mouton to stand out. "Slight differences in hair color or style do not render a photographic display unduly suggestive. [Citation.]" (People v. Bracamonte (1981) 119 Cal.App.3d 644, 656, disapproved on another point in People v. Calderon (1994) 9 Cal.4th 69, 79-80.) With the exception of the one man with dreadlocks, the photographic display here shows twelve men having either very short hair or no hair at all.
Also, that two of the men were apparently Hispanic did not undermine the fairness of the lineup. In People v. Clark (2016) 63 Cal.4th 522, the California Supreme Court explained that "apparent racial or ethnic identity" is hard to quantify and agree on, thus "opinions in this area can vary." (Id. at p. 557.) In Clark, the defendant was "a light-complexioned African-American man, and the five other men in his photographic group were apparently White, Hispanic, or mixed race." (Id. at p. 556.) The court, however, never reached the issue of whether the line-up was unduly suggestive in regard to apparent racial or ethnic identity. (Id. at p. 557.) Instead, the court concluded that it "was 'nevertheless reliable under the totality of the circumstances.' " (Ibid.)
Here, any disparity in apparent racial or ethnic identity was minor. None of the men in the group were White. Rather, everyone appeared to be African-American, with the exception of the two men who appeared to be Hispanic. This is in stark contrast to instances where a defendant was the only Asian man in the lineup or the only man from Italian descent with dark, wavy hair and dark skin. (See, e.g., United States v. Wade (1967) 388 U.S. 218, 232-233; People v. Caruso (1968) 68 Cal.2d 183, 187-188.)
Mouton has not demonstrated that his dark complexion in itself rendered the lineup unduly suggestive. While Mouton was darker complexioned than several men in the lineup, at least two other men had complexions that were as dark, if not darker, than Mouton. In any event, "there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspect's photograph is much more distinguishable from the others in the lineup. (See People v. Johnson (1992) 3 Cal.4th 1183, 1215-1218 [where the defendant was the only person in jail clothing]; People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [where the defendant was the only man in a red shirt].)" (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) All the same, Mouton's skin tone did not cause him to stand out as the possible or most distinguishable choice.
Relying on our decision in People v. Citrino (1970) 11 Cal.App.3d 778 (Citrino), Mouton claims that the inclusion of photos of his two brothers, plus his own photo, resulted in three photos of him being put in the array, which he contends was unduly suggestive. We disagree. Citrino bears little similarity to this case. In Citrino, by the time of trial, there had been no previous identification and several months had elapsed since the witnesses had briefly seen one of the robbers. (Id. at p. 784.) The day before trial began, the witnesses were shown five photographs, three of which depicted the defendant. (Ibid.) Attached to one of the three photographs of the defendant was a fingerprint card indicating that the defendant previously had been convicted of two counts of burglary. (Ibid.) In Citrino, we concluded that "[t]he witnesses were thereby inevitably made aware that the police suspected [defendant] and that [defendant] was a criminal. Moreover, even if the witnesses did not draw these obvious conclusions, the statistical chance for error was greatly increased by the procedure adopted; a mere random choice from among the five pictures would have been subject to the likelihood that one of the three pictures of [defendant] would be selected." (Ibid.)
Unlike in Citrino, Doe I was first shown the 13-pack within a month of the assault. Also, nothing about Mouton's photo suggested that police suspected him or that he was a criminal. Indeed, Mouton's photo, and the majority of the other photos were images provided by the Department of Motor Vehicles. As noted, the trial court found that four of the fillers should be disregarded due to the dissimilarities in race, hairstyle, and skin tone. Exclusion of these photos did not increase the statistical chance for error, as the remaining nine photos did not include three photos of Mouton. Instead, the lineup included one photo of Mouton, one of his fraternal twin brother, one of another brother, plus six other men. Mouton and his fraternal twin are anything but identical. The photos do not even hint at a familial relationship, let alone that the two men are twin brothers. Also, due to different lighting and camera positions, the photos of Mouton and his fraternal twin are almost entirely dissimilar. Likewise, in comparing the photographs of Mouton and his other brother there is an absence of any familial resemblance. Despite the lack of any apparent family ties, Mouton's brothers shared several identifying characteristics that had been reported by the witnesses. All three men were approximately the same age (early to mid-20s), height (between 6'1 and 6'5), and weight (between 180 to 200 pounds). Additionally, the photos of Mouton and his brothers reflect that all three men had full lips. The inclusion of the photographs of Mouton's brothers not only fails to buttress his proposition but directly negates it. "It is far too well known to be disputed that the greater the similarity between the accused and others in the photographs, the closer the photographic identification approaches the ideal. [Citation.]" (People v. Holt, supra, 28 Cal.App.3d at p. 350; see also People v. Dewberry, supra, 40 Cal.App.3d at p. 181.)
In sum, nothing in the record before us indicates that Mouton's photograph was conspicuous, and the differences in features among the participants did not make the lineup suggestive. (People v. Johnson, supra, 3 Cal.4th 1183 at pp. 1215-1218, People v. Phan (1993) 14 Cal.App.4th 1453, 1462.) Again, Mouton was neither the oldest nor the youngest of the participants, neither the tallest nor the shortest, neither the heaviest nor the lightest. And, two men in the array had complexions that were as dark, if not darker, than Mouton's complexion. Also, all of the men, except the one with dreadlocks, had either very short hair or no hair.
We also find nothing in the lineup procedure itself that demonstrates unfairness. Defense counsel thoroughly cross-examined Sergeant Rivera on his methodology in compiling the lineup and the manner he provided it to the victims. The presentation of the photographs to the victims was entirely neutral. The victims were given cautionary instructions that the person who committed the crime was not necessarily among the group of photographs, and an identification was not required. The photographs were handed to the victims in a "stack," and each victim looked through them on her own. The photographic identification was not based on any suggestive elements, but instead the witnesses' observations. The jury was also instructed with CALCRIM No. 315 regarding the manner in which to evaluate eyewitness identifications. The instruction posed numerous questions for the jury to consider, including whether the photographic lineup was conducted in accordance with established procedure and whether it consisted of individuals who matched the witnesses' descriptions.
Upon review of the totality of circumstances, we concur with the trial court's assessment that the photo lineup, even if it did not meet optimal standards of reliability in light of its somewhat "unorthodox" compilation, was not impermissibly suggestive. (People v. Carpenter (1997) 15 Cal.4th 312, 366-367, abrogated on another point in People v. Diaz (2015) 60 Cal.4th 1176, 1188-1191.) C. The Trial Did Not Err in Denying the Motion to Dismiss
1. Background
Midtrial Mouton filed a dismissal motion on the ground that the prosecution had failed to disclose exculpatory evidence pursuant to Brady and Evidence Code section 1054.5, subdivision (b). Mouton noted that the defense had just received subpoenaed incident reports from the Park Regency apartments and learned the following information for the first time: On August 12, 2010, the Park Regency manager, Philip Noden, notified the Contra Costa County Sheriff's Department that one Michael Petties, a resident of the apartments who was in Noden's office to discuss a bounced check, looked exactly like the composite sketches made by the sketch artist in conjunction with the Park Regency victims. Noden was so taken aback at the "eerie" and "uncanny resemblance" of Petties to the composite sketches that he immediately called the sheriff's office. According to Noden, deputies responded immediately and questioned and photographed Petties.
After hearing argument on Mouton's motion to dismiss, the trial court denied dismissal but found the evidence admissible as it was relevant to the issue of third party culpability. The court noted that the defense had an additional four days, in light of an upcoming court holiday. The court added that if the defense "need[s] extra time to present witnesses, I will allow that as well." The court explained that a dismissal was not warranted "because I do think there is time for the defense to be able to present it. I think it should be presented. And as I said, if you need additional time, we are ahead of schedule, I'll allow it."
The defense did not, however, seek a continuance. Rather, the defense presented the Noden/Petties third party culpability evidence to the jury, and argued extensively that it led to reasonable doubt that Mouton was guilty of Counts 1 and 2. The trial court also instructed the jury regarding the late disclosure of evidence: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose: that Park Regency manager Phil Noden reported that resident Michael Petties bore an uncanny resemblance to the composite sketches within the legal time period. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure." (CALCRIM No. 306.)
2. Analysis
Penal Code section 1054.1, subdivisions (e) and (f) provide that the prosecutor must disclose to the defendant relevant written or recorded statements or reports as well as exculpatory evidence information in the prosecutor's possession or known to be in the possession of the investigating agencies. Penal Code section 1054.5, subdivision (b) provides in part: "Upon a showing that a party has not complied with [Penal Code] Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." Subdivision (c) of Penal Code section 1054.5 provides, however, "that '[t]he court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.' [Citation.]" (People v. Ashraf (2007) 151 Cal.App.4th 1205, 1211.) " '[T]he only substantive discovery mandated by the United States Constitution' is the disclosure of 'material exculpatory evidence' under Brady . . . ." (People v. Ashraf, supra, 151 Cal.App.4th at p. 1211.)
It is the defendant's burden to establish the elements of a Brady claim. (People v. Hoyos (2007) 41 Cal.4th 872, 918, abrogated on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 634-643.) Evidence is not "suppressed" for purposes of a Brady claim if it is presented at trial, regardless of whether or not it has previously been disclosed during discovery. (People v. Verdugo (2010) 50 Cal.4th 263, 281; People v. Morrison (2004) 34 Cal.4th 698, 715.)
Evidence is "favorable" for purposes of Brady if it hurts the prosecution or helps the defense. (People v. Morrison, supra, 34 Cal.4th 698, 714.) Not all favorable evidence is material. (People v. Salazar (2005) 35 Cal.4th 1031,1050-1051.) Evidence is "material" only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. (Id. at p. 1042.) A " 'reasonable probability' " is a probability [that is] sufficient to 'undermine' confidence in the outcome.' " (Id. at p. 1050.)
There was no Brady violation here because any exculpatory information in Noden's testimony was disclosed in time for effective presentation to the jury. The testimony was favorable to the defense to the extent that it pointed to another possible perpetrator. But the jury learned this information at trial. Evidence that is presented at trial is not considered suppressed. (People v. Verdugo, supra, 50 Cal.4th at p. 281.)
Mouton insists that Noden/Petties third-party culpability evidence was not disclosed in time for effective use. According to Mouton, "[h]ad the evidence been disclosed in a timely and constitutional manner, the defense could have tracked down Petties . . .; the defense could have used his photograph in a lineup when Doe [I's] memory was still fresh. In short, a full-fledged defense was a reasonable probability." This speculative assertion does not establish prejudice. A defendant must do more than hypothesize that an investigation may have led to some unspecified evidence that may or may not have been favorable to him. (See People v. Salazar, supra, 35 Cal.4th at pp. 1043, 1049-1050 [Brady does not require disclosure of information that "might" prove helpful to the defense].) In any event, Mouton could have asked for a continuance to give him additional time to develop the third-party culpability issue, but he chose not to seek one. (See, e.g., People v. Sanchez (1998) 62 Cal.App.4th 460, 474, fn. 8 [any Brady error harmless where prosecution disclosed evidence during trial and defense failed to request a continuance]; accord United States v. O'Hara (7th Cir. 2002) 301 F.3d 563, 569 [continuance is the proper remedy for delayed disclosure of Brady material].)
We are mindful and aware "of the difficulty of reconstructing . . . the course that the defense and the trial would have taken" (United States v. Bagley (1985) 473 U.S. 667, 683) had the Brady material been timely provided. It is true that a Brady violation can impact " 'defense investigations and trial strategies . . . .' " (People v. Verdugo, supra, 50 Cal.4th at p. 279.) As indicated, it remains speculative that a more thorough investigation into the issue of third-party culpability would have been sufficient to undermine confidence in the outcome. Finally, the jury heard evidence that Petties bore an "uncanny" resemblance to the composite sketches and still convicted Mouton.
In sum, the trial court did not err in denying the motion to dismiss, and, in the absence of any showing of prejudice, reversal is not warranted. (People v. Bohannon (2000) 82 Cal.App.4th 798, 807, overruled on another point in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13; People v. Gatlin (1989) 209 Cal.App.3d 31, 38.) D. Alleged Prosecutorial Misconduct
Mouton contends that the prosecutor committed misconduct in his closing argument by attacking the integrity of defense counsel, and suggesting that it was improper for defense counsel to vigorously cross-examine the victims.
1. The Challenged Conduct
Mouton cites to several instances during rebuttal closing argument where he contends the prosecutor improperly remarked that "the defense was working against the truth, that [he] and counsel were playing a game, and that they wanted to fool or trick the jurors. The suggestion that defense counsel had attacked [the victim] added fuel to the fire."
During rebuttal, the prosecutor argued to the jury that defense counsel wanted them to rely on Mouton's testimony that he raped Doe II but that was not "really the case" because he still refused to admit the threats. Instead, the prosecutor argued that Mouton was only admitting the bare minimum. The prosecutor then told the jury that Mouton was "not admitting that it was more than one penetration because he only admits what he has to." The prosecutor then made the following analogy: "I mean, it's like the example when you see a child. You know, maybe there's a plate of cookies that comes out . . . They've got a little smudge of chocolate. And, you know, they're chewing, swallowing, and you go, 'Did you eat a cookie, Jimmy?' And they go, 'Yeah, but just one.' Because they only really have to concede that which you just saw, which is the fact they had a cookie in their mouth and they've got chocolate in their face. But the fact is there's 10 missing from the tray and no one else is around." The prosecutor then told the jury "at some point it starts to become less about a search for the truth and more of a game. That's the reason why we need to ask questions, cross-examine (Jane Doe II), despite the fact that we're conceding that count about, Isn't it true there weren't any weapons, or he didn't hit you, or it wasn't physical force, because we're just trying to muddy up the waters and hope that we can't see through it. That's the game." At this point, defense counsel objected on the grounds of improper argument. The trial court overruled the objection and the prosecutor continued to argue that defense counsel disparaged the victims by suggesting that Doe II's injuries could have been caused by consensual sex and by insinuating that Doe I " 'gets kind of dramatic when she drinks alcohol[.]' " Defense counsel again objected, asserting that the prosecutor was engaging in improper argument and misconduct.
The trial court sustained the objection, but found no misconduct. At the first recess, defense counsel moved for a mistrial, arguing that the prosecutor had engaged in "textbook misconduct" by making the arguments described above. The trial court said that "counsel ha[d] to be careful" but denied the mistrial motion.
2. Analysis
Mouton's misconduct argument implicates the extent to which the prosecutor may comment on both the defense attorney's trial conduct, and the credibility of a defendant's trial testimony. When the claim of prosecutorial misconduct focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Brown (2003) 31 Cal.4th 518, 553-554.) When conducting this inquiry, the court " 'do[es] not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' " (Ibid.)
Moreover, a prosecutor is given wide latitude during argument. Prosecutorial argument may be vigorous, as long as it amounts to fair comment on the evidence, including reasonable inferences or deductions that may be drawn from that evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1153; People v. Hill (1998) 17 Cal.4th 800, 819.) Here, we conclude the prosecutor's comments were properly based on the evidence and, in any event, were nonprejudicial.
"A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.]" (People v. Hill, supra, 17 Cal.4th at p. 832.) " '[I]t [is] improper for the prosecutor to imply that defense counsel has fabricated evidence or otherwise to portray defense counsel as the villain in the case. It is not necessary to find that such implication impinges upon defendant's constitutional right to counsel. [Citation.] Instead it is sufficient to note that defendant's conviction should rest on the evidence, not on derelictions of his counsel. [Citations.] Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.' [Citation.]" (People v. Sandoval (1992) 4 Cal.4th 155, 183-184.)
"In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor's comments in relation to the remarks of defense counsel, and inquire whether the former constitutes a fair response to the latter. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 978, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
There are numerous cases that have rejected misconduct claims based upon closing arguments far more inflammatory than anything said in this case. For example, in People v. Cummings (1993) 4 Cal.4th 1233 (Cummings), the court found the prosecutor did not commit misconduct when he argued that " 'a skillful lawyer, a lawyer that is persuasive as [defense counsel] is, could maybe get [a witness] to say almost anything . . . .' " (Id. at p. 1303.) Cummings held such an argument was a comment on that witness's confusion and difficulty in understanding and responding to questions, rather than an assertion that defense counsel sought to elicit perjured testimony from the witness. (Ibid.; see also People v. Marquez (1992) 1 Cal.4th 553, 575-576 [prosecutor's reference to defense as " 'smokescreen' " not misconduct]; People v. Young (2005) 34 Cal.4th 1149, 1193 [prosecutor's characterization of defense counsel's argument as "'idiocy' " was fair comment on counsel's argument]; People v. Zambrano (2007) 41 Cal.4th 1082, 1154, overruled on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22, [prosecutor did not commit misconduct and "simply used pungent language" when he described defense counsel's closing argument "as a 'lawyer's game' "]; People v. Stitely (2005) 35 Cal.4th 514, 559-560 [prosecutor did not commit misconduct by arguing jurors should avoid " 'fall[ing] for' " defense counsel's " 'ridiculous' " and " 'outrageous' " attempt to allow defendant to " 'walk' free" by claiming he was guilty only of second degree murder]; People v. Gionis (1995) 9 Cal.4th 1196, 1215-1216 [prosecutor did not commit misconduct by arguing defense counsel was talking out of both sides of his mouth and that this was " 'great lawyering' "]; People v. Bell (1989) 49 Cal.3d 502, 538 [not misconduct when prosecutor argued defense counsel's job was to " 'confuse [ ]' " and " 'throw sand in your eyes,' " and that counsel " 'does a good job of it' "].)
In addition to fair commentary about defense counsel's handling of the case, "[t]he prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence, to comment on failure to produce logical evidence, to argue on the basis of inference from the evidence that a defense is fabricated, and to comment on the evidence of prior convictions attributable to defense witnesses. [Citations.]" (People v. Pinholster (1992) 1 Cal.4th 865, 948 (Pinholster), overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) In Pinholster, the prosecutor did not commit misconduct when he referred to a defense witness as a " 'weasel,' " called another defense witness a "perjurer," accused yet another witness of failing to follow the defense " 'script,' " and said defendant had been "caught in some lies, some 'doozies . . . .' " (Pinholster, supra, 1 Cal.4th at p. 948.) In People v. Boyette (2002) 29 Cal.4th 381, the court held the prosecutor did not commit misconduct by repeatedly calling defendant "a liar." (Id. at p. 433.) The court held it was permissible argument since there was conflicting evidence about certain issues which the prosecutor argued defendant lied about, and "the prosecutor was thus permitted to argue that defendant was less than truthful." (Ibid.)
In People v. Edelbacher (1989) 47 Cal.3d 983, the court held the prosecutor did not commit misconduct by describing defendant as, among other things, "a 'pathological liar,' and 'one of the greatest liars in the history of Fresno County.' " (Id. at p. 1030.) "Referring to the testimony and out-of-court statements of a defendant as 'lies' is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor's personal belief resulting from personal experience or from evidence outside the record. [Citations.] Argument may be vigorous and may include opprobrious epithets reasonably warranted by the evidence. [Citations.] The prosecutor's comments were based on the evidence and amounted to no more than vigorous but fair argument." (Ibid.)
Similarly, the comments made by the prosecutor in this case urging the jury to view the defense strategies with skepticism, while not exemplary, were not so egregious as to deprive defendant of a fair trial. Secondly, even if there was misconduct, there was no prejudice to Mouton because the trial court properly and adequately admonished the jury that it had to decide Mouton's guilt or innocence based solely on the evidence before them and the applicable law; the jury was also advised that that the statements of counsel did not qualify as evidence. (See CALCRIM Nos. 200, 222; People v. Jones (1997) 15 Cal.4th 119, 168, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [no prejudice where trial court sustained objection and advised jury to disregard improper comment; presumed jury followed instructions]; People v. Cummings, supra, 4 Cal.4th 1233, 1302 ["any implication in the argument that defense counsel engaged in deception was removed by the trial court's admonition . . . ."].) E. Cumulative Prejudice
Mouton argues the cumulative prejudicial impact of the trial court's alleged errors requires reversal. As discussed, we conclude the court did not err by denying the motion to sever, by denying the in limine motion to exclude the eyewitness identifications; by declining to dismiss the charges based on alleged Brady error; and by denying the motion for mistrial based on alleged prosecutorial misconduct. Having found no errors, harmless or otherwise, we perforce find no basis to find cumulative prejudice.
III. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SCHULMAN, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------